TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 839
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....s of the petitioner Company is violative of the provisions of section 141 (3) (I) read with section 144 of the Companies Act, 2013 and therefore bad in law and void abinito; 7.3 to kindly allow the petitioner company to appoint some other qualified Chartered Accountant as the Statutory Auditors of the Company to complete the financial audit for the five financial years starting from 1st April, 2016 and ending on 31st March, 2021 and to file its revised financial statements with the Respondent No.1 Ministry of Corporate Affairs within a period of six months from the date of the Order, without payment of late filing fee or payment of penalty or action for delay, which may be caused due to delay in complying with the provisions of the Companies Act, 2013; and 7.4 such other or further and appropriate order, with or direction which this Hon'ble Court may think appropriate considering the facts and circumstances of the case in the interest of justice." 3. In brief, the facts giving rise to the present petition are that the petitioner Company is engaged in the business of trading and sale of mobile instruments within the State of Madhya Pradesh, it was incorporated on 07.09.2015....
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....trar of Companies on 03.10.2016 with mala fide intentions to hide the non-compliance of provisions of Section 141 (3)(i) read with provisions of Section 144(b) of the Act of 2013 from the company and its officers. The case of the petitioner is that prior to the appointment of the Auditor at the annual general meeting held on 30.09.2016, the company at its Board meeting dated 29.12.2015 had appointed RKG & Associates as Internal Auditor of the company. Counsel for the petitioner has submitted that RKG stands for Rajesh Kumar Gurbani. The case of the petitioner is that the office of the respondent No.3 Shri Rajesh Gurbani, Chartered Accountant was situated at 56, 3rd Floor, Dawa Bazaar, RNT Marg, Indore, 452001 from where he was also working as the Internal Auditor of the petitioner company under the name and style of of RKG & Associates, 56, 3rd Floor, Dawa Bazaar, RNT Marg, Indore 452001 which demonstrates that the Statutory Auditor and the Internal Auditor were the one and the same person. Ledger accounts of the company have also been placed on record to demonstrate that on 30.09.2016, when the respondent No.3 was appointed as Statutory Auditor, he was also discharging his functio....
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....tutory Auditor of the company was bad in law which is in gross violation of provisions of Sections 141 and 144 of the Act of 2013. Counsel has submitted that the respondent No.2 has also not dealt with the other grounds raised by the petitioner in its application filed for disqualification of the statutory auditor and there is no reference of Sections 141 (3)(i) and 144(b) of the Act of 2013 in gross violation of the which the appointment of the respondent No.3 has been made as the statutory auditor. Section 144 (b) clearly provides that an auditor appointed under the Act of 2013 shall provide to the company only such other services as are approved by the Board of Directors or the audit committee, as the case may be, but which shall not include any of the following services (whether such services are rendered directly or indirectly to the company), company or its holding company or subsidiary company namely:- (a) xxxxxxxxx (b) Internal audit xxxxxxxxxxxxxx 9. Thus, it is submitted that the respondent No.3 was purely acting directly as also indirectly in the capacities of statutory auditor as well as internal auditor at the same time and as such his appointment as the statuto....
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....oper books of account as required by law have been kept by the company so far as appears from his examination of those books and proper returns adequate for the purposes of his audit have been received from branches not visited by him; (c) whether the report on the accounts of any branch office of the company audited under sub-section (8) by a person other than the company's auditor has been sent to him under the proviso to that sub-section and the manner in which he has dealt with it in preparing his report; (d) Whether the company's balance sheet and profit and loss account dealt with in the report are in agreement with the books of account and returns; (e) Whether, in his opinion, the financial statements comply with the accounting standards; (f) The observations or comments of the auditors on financial transactions or matters which have any adverse effect on the functioning of the company; (g) Whether any director is disqualified from being appointed as a director under sub-section (2) of section 164; (h) Any qualification, reservation or adverse remark relating to the maintenance of accounts and other matters connected therewith; (I) whether the company has adequ....
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....dealt with by the Regional Director in any manner. The review application has also been dismissed simply on the ground of res-judicata, which cannot be a ground to reject an application for review. 17. So far as the question of maintainability of the writ petition is concerned, the Supreme Court, in the case of Satwati Deswal v. State of Haryana, (2010) 1 SCC 126 has held as under:- "3. In our view, this appeal must succeed on a very short point. Before we take up the ground on which this appeal should be allowed, we may state the relevant facts leading to the filing of this appeal, which are as follows: the appellant [MA, BEd, MSc (Computer)] was appointed as a lecturer in 2003 in a recognised school in the State of Haryana and was subsequently promoted to the post of Principal on account of her seniority. Her appointment and promotion were duly approved by the authorities concerned, but by a non-speaking and unreasoned order dated 11-9-2006, her services were terminated by the Manager of the School, namely, Respondent 5 herein. 4. Admittedly, in this case no show-cause notice was issued to her nor was the order of termination passed by initiating any departmental proceeding ....